Much of Mr. Lincoln's actions regarding emancipation were dictated by timing. Illinois attorney Leonard Swett said he spoke to President Lincoln in October 1863 about a constitutional amendment to abolish slavery: "I told him ...I believed the result of this war would be the extermination of slavery; that Congress would pass the resolution; and that it was proper at that time to be done. I told him if he took that stand, it was an outside position and no one could maintain himself upon any measure more radical, and if failed to take the positions, his rivals would. Turning to me suddenly he said, 'Is not that question doing well enough now?' I replied that it was. 'Well', said he, 'I have never done an official act with a view to promote my own personal aggrandizement, and I don't like to begin now, I can see that time coming; whoever can wait for it, will see it — whoever stands in its way, will be run over by it.'"1
The longer the South delayed defeat, the more inevitable change was. A few months later on January 1, 1864, another Illinois friend, Congressman Isaac Arnold, paid a New Years Day call on Mr. Lincoln. According to Arnold's biography of Mr. Lincoln: "After congratulating the President on the great victories which had been achieved in the East and the West, and the brightening prospects of peace, [Arnold] said:
'I hope, Mr. President that on next New Year's day I have the pleasure of congratulating you on three events which now seem very probable."
That same month Missouri Senator John B. Henderson introduced a joint congressional resolution to abolish slavery. Philip S. Paludan wrote: "Although clear evidence is lacking, it would not be surprising if Lincoln had put him up to it, for the president continued to believe that border-state challenges to slavery would deal a heavy blow to the rebellion."3 President Lincoln understood the limits of the Emancipation Proclamation. "Mr. Lincoln believed that as soon as the war was over, the proclamation would become void," wrote Lincoln biographer Ida M. Tarbell. "Voters would have to decide then what slaves it freed — whether only those who had under it made an effort for their freedom and had come into the Union lines or all of those in the States and parts of States in rebellion at the time it was issued."4
In February 1864, Massachusetts Senator Charles Sumner "presented the petition of one hundred thousand persons praying Congress to pass an act of universal emancipation, and supported it briefly," noted Sumner biographer Moorfield Storey. "Though Sumner did not disclose it, he inspired the movement which led to this petition; but the time was ripe, and before Sumner moved his resolutions, two amendments abolishing slavery had been introduced in the House and one in the Senate. 'Everywhere within the limits of the United States and of each State or Territory thereof, all persons are equal before the law, so that no person can hold another as slave.'"5 Lincoln biographer Carl Sandburg noted that "Senator Sumner put in another joint resolution to the same effect, to be referred to the Committee on Slavery, of which Sumner was chairman. Sumner wished a more emphatic style" However, "Chairman Lyman Trumbull of the Judiciary Committee reported back a substitute for the Henderson and Sumner proposals. This was the one finally voted on. Numbered as Article XIII of the Constitution, it read:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Senator Trumbull had spearheaded the first and second Confiscation Acts but believed that a constitutional amendment, not congressional action, was necessary to eliminate slavery finally and completely. "Only slavery prohibited by an amendment to the Constitution...will make sure that no state or Congress could ever restore slavery," said Trumbull.7 The pressure for a Constitutional Amendment was building. On February 11, 1864 — the day after the Judiciary Committee acted on Trumbull's amendment, a Committee from the Synod of the Reformed Presbyterian Church met with President Lincoln to lobby for a constitutional amendment.
Trumbull, noted historian Roy P. Basler, modeled his language after the Northwest Ordinance of 1787.8 Radical Republicans who had hoped to abolish slavery with simple congressional action were not happy with Trumbull, but they lined up behind Trumbull's amendment. According to Lincoln biographers John G. Nicolay and John Hay, "Even after the committee on the judiciary by this report had adopted the measure, it was evidently thought to be merely in an experimental stage for more than six weeks elapsed before the Senate again took it up for action. On the 28th of March, however, Mr. Trumbull formally opened debate upon it in an elaborate speech. The discussion was continued from time to time until the 8th of April. As Republicans had almost unanimous control of the Senate, their speeches, though able and eloquent, seemed perfunctory and devoted to a foregone conclusion. Those which attracted most attention were the arguments of Reverdy Johnson of Maryland and Mr. Henderson of Missouri, — Senators representing slave States, — advocating the amendment. Senator Sumner, whose pride of erudition amounted almost to vanity, pleaded earnestly for his phrase, 'All persons are equal before the law,' copied from the Constitution of revolutionary France. But Jacob M. Howard of Michigan, one of the soundest lawyers and clearest thinkers of the Senate, pointed out the inapplicability of the words, and declared it safer to follow the Ordinance of 1787, with its historical associations and its well adjudicated meaning."9 The resolution passed the Senate easily on April 8 by a vote of 38-6 with the help of Democrats from California, Maryland, Missouri, Oregon, and West Virginia. Only six Democrats from Kentucky, Indiana, California, and Delaware voted against the amendment.
The battle in the House in the spring of 1864 was more difficult. "An attempt to have the amendment adopted had been made in the House as early as December, 1863, by James M. Ashley of Ohio," wrote historian Ralph Korngold. After the Senate passed its version of the 13th Amendment, "William Windom of Minnesota offered an identical resolution in the House, which, however, failed to obtain the necessary two-thirds vote. It was just as well. Stevens's amendment to the Enrollment Act had been adopted only a few months earlier and time was needed for it to do its work."10 Historian George H. Mayer wrote in The Republican Party: "It would take four years for public opinion to catch up to [Thaddeus] Stevens, but in 1864 he pushed Congress far enough to kill gradual emancipation. His first move was to secure an amendment to the Enrollment act, making all able-bodied Negroes subject to the draft. The amendment also provided for the permanent freedom of those called up for service and a paltry compensation of three hundred dollars to loyal owners for each slave liberated in this fashion."11 Congressman Stevens moved his Enrollment Act amendment on February 10. Senator Henry Wilson later wrote:
The Enrollment Bill was referred to a Conference Committee, consisting of Mr. Wilson of Massachusetts, Mr. Nesmet of Oregon, and Mr. Grimes of Iowa, on the part of the Senate; and Mr. Schenck of Ohio, Mr. Deming of Connecticut, and Mr. Kernan of New York, on the part of the House. In the Conference Committee, Mr. Wilson stated that he never could assent to the amendment, unless the drafted slaves were made free on being mustered into the service of the United States. Mr. Grimes sustained that position; and the House committee assented to it. The House amendment was then modified so as to read, 'That all able-bodied male colored persons between the ages of twenty and forty-five years, whether citizens or not, resident in the United States, shall be enrolled according to the provisions of this act, and of the act to which this is an amendment, and form part of the national forces; and, when a slave of a loyal master shall be drafted and mustered into the service of the United States, his master shall have a certificate thereof; and thereupon such slave shall be free; and the bounty of a hundred dollars, now payable by law for each drafted man, shall be paid to the person to whom such drafted person was owing service or labor at the time of his muster into the service of the United States. The Secretary of War shall appoint a commission in each of the slave States represented in Congress, charged to award, to each loyal person to whom a colored volunteer may owe service, a just compensation, not exceeding three hundred dollars, for each such colored volunteer, payable out of the fund derived from commutation; and every such colored volunteer, on being mustered into the service small be free.'
Historian Philip S. Paludan wrote: "After the Senate passed the amendment by the necessary-two-thirds majority it went to the House, and the president let it be known he favored it."13 Congressman Thaddeus Stevens was often a strong critic of the President, but in this instance, he was one of his strongest supporters. Trumbull biographer Ralph J. Roske noted that President Lincoln "remained on the sidelines while the constitution amendment was before the Senate. He was indifferent to its wording and felt confident that an amendment would be passed by the staunchly-Republican upper chamber. After the Senate approved the amendment, Lincoln vigorously backed it in the struggle in the House of Representatives."14
But according to his biographers Nicolay and Hay: "When, however, the Joint Resolution went to the House of Representatives there was such a formidable party strength arrayed against it as to foreshadow its failure. The party classification of the House stood one hundred and two Republicans, seventh-five Democrats, and nine from the border states, leaving but little chance of obtaining the required two-thirds vote in favor of the measure. Nevertheless there was sufficient Republican strength to secure its discussion..."15 In a speech on the House floor, Congressman Stevens said:
Those who believe that a righteous Providence punishes nations for national sins believe that this terrible plague is brought upon us as a punishment for our oppression of a harmless race of men inflicted without cause and without excuse for ages. I accept this belief; for I remember that an ancient despot, not so cruel as this Republic, held a people in bondage — a bondage much lighter than American slavery; that the Lord ordered him to liberate them. He refused. His whole people were punished. Plague after plague was sent upon the land until the seventh slew the firstborn of every household; nor did they cease until the tyrant 'let the people go.' We have suffered more than all the plagues of Egypt; more than the first-born of every household has been taken. We still harden our hearts and refuse to let the people go. The scourge still continues, nor do I expect it to cease until we obey the high behest of the Father of men.
According to biographers Nicolay and Hay: "The speeches in opposition all came from Democrats; the speeches in its favor all came from Republicans, except one. From its adoption the former predicted the direst evils to the Constitution and the Republic; the latter the most beneficial results in the restoration of the country to peace and the fulfillment of the high destiny intended for it by its founders."17 The Amendment failed in the House on June 15 because it attracted only four Democratic votes against the two-thirds needed for passage. Despite the amendment's defeat by a vote of 93-65, President Lincoln was helping lay the groundwork for its eventual passage. War Department official Charles A. Dana recalled that the President was already thinking ahead to the next vote:
Lincoln was a supreme politician. He understood politics because he understood human nature. I had an illustration of this in the spring of 1864. The administration had decided that the Constitution of the United States should be amended so that slavery should be prohibited. This was no only a change in our national policy, it was also a most important military measure. It was intended not merely as a means of abolishing slavery forever, but as a means of abolishing slavery forever, but as a means of affecting the judgment and the feelings and the anticipations of those in rebellion. It was believed that such an amendment to the Constitution would be equivalent to new armies in the field, that it would be worth at least a million men, that it would be an intellectual army that would tend to paralyze the enemy and break the continuity of his ideas.
Historian Fawn M. Brodie wrote: "The Radicals were greatly encouraged when in October, 1864, Maryland by popular vote amended her constitution and abolished slavery. Lincoln, elated said to a friend, "It is worth many victories in the field. It clears up a piece of ground.'"20 The President's reelection in November 1864 further laid the groundwork for its final passage. Rather than waiting for a new Congress to take their seats, President Lincoln appealed to the Congress that had already rejected the amendment. In his last message to that Congress in December 1864, President Lincoln wrote:
At the last session of Congress a proposed amendment of the Constitution abolishing slavery throughout the United States, passed the Senate, but failed for lack of the requisite two-thirds vote in the House of Representatives. Although the present is the same Congress, and nearly the same members, and without questioning the wisdom or patriotism of those who stood in opposition, I venture to recommend the reconsideration and passage of the measure at the present session. Of course the abstract question is not changed; but an intervening election shows, almost certainly, that the next Congress will pass the measure if this does not. Hence there is only a question of time as to when the proposed amendment will go to the States for their action. And as it is to so go, at all events, may we not agree that the sooner the better? It is not claimed that the election has imposed a duty on members to change their views or their votes, any further than, as an additional element to be considered, their judgment may be affected by it. It is the voice of the people now, for the first time, heard upon the question. In a great national crisis, like ours, unanimity of action among those seeking a common end is very desirable — almost indispensable. And yet no approach to such unanimity is attainable, unless some deference shall be paid to the will of the majority, simply because it is the will of the majority. In this case the common end is the maintenance of the Union; and, among the means to secure that end, such will, through the election, is most clearly declared in favor of such constitutional amendment.21
Lincoln biographer Carl Sandburg wrote: "To clear the air on this, to make all Negroes free under the law and the Constitution, Lincoln in his December message pointed to the last session of Congress. Then 'a proposed amendment of the Constitution, abolishing slavery throughout the United States, passed the Senate, but failed for lack of the requisite two-thirds vote in the House of Representatives.' He would not question 'the wisdom or patriotism of those who stood in opposition,' while venturing to recommend reconsideration and passage of the measure at the present session. 'Of course the abstract question is not changed, but an intervening election shows, almost certainly, that the next Congress will pass the measure if this does not. Hence there is only a question of time as to when the proposed amendment will go to the States for their action. And as it is to so go, at all events, may we not agree that the sooner the better?'"22